Contractor Services Agreement
Last Modified: January 1, 2021
1. Services and Compensation. Company and Contractor agree on certain consulting services to be performed under this Agreement as set forth in Schedule 1, attached hereto and incorporated herein, and as may be amended or updated in accordance with the terms of this Agreement (collectively, the “Services”). In the event the Parties desire to update, expand, revise, or otherwise amend the Services, such revision or amendment must be performed in accordance with the terms and conditions of Section 4.5 of this Agreement.
1.1 Services. Subject to the terms and conditions of this Agreement, Contractor shall, to the best of his or her ability, render and perform those tasks and services identified and described in Schedule 1 attached hereto and incorporated herein (collectively, the “Services”). The manner and means by which Contractor chooses to complete the Services are in Contractor’s sole discretion and control. When performing the Services, Contractor shall provide his or her own equipment, tools, and other materials at Contractor’s own expense. Contractor shall perform the tasks necessary to complete the Services in a timely and professional manner consistent with industry standards, and at a location, place, and time that Contractor deems appropriate. Contractor warrants to Company that the Services to be delivered hereunder will be of the kind and quality designated in Schedule 1 and will be performed in a professional manner pursuant to industry standards.
1.2 Compensation. In consideration of Contractor’s performance and completion of the Services, during the Term, Company will pay to Contractor the Compensation as defined and set forth in Schedule 1 attached hereto and incorporated herein. Such Compensation shall be paid and delivered in accordance with the terms and conditions of the Terms of Service entered into by and between Company, Contractor, and BullpenRE, Inc., a Delaware corporation (the “TOS”).
2. Relationship of Parties. The Parties agree that the relationship created by this Agreement is that of an independent contractor and not that of an employee and employer, and nothing contained herein shall be construed as the creation of a partnership or joint venture. The Parties are each individually responsible for payment of any taxes, including, without limitation, all international, federal, state, and local personal and business income taxes, sales and use taxes, other business taxes, and license fees arising out of the Parties’ performance of the terms and conditions of this Agreement.
3. Intellectual Property. The entire right, title, and interest in and to any intellectual property created by the Parties’ performance of this Agreement, and all modifications thereto, and all portions thereof (collectively, the “Work Product”), together with all proprietary and intellectual property rights relating thereto (collectively, “Intellectual Property”), are the exclusive property of Company. Under no circumstances may Contractor use the Work Product or Intellectual Property, or any component part thereof, for his or her own benefit or for the benefit of any third party. All Work Product and Intellectual Property rights therein shall be deemed works-for-hire and shall be the exclusive property of Company. Contractor hereby assigns to Company all right, title, and interest in all rights that may be embodied in any Work Product and Intellectual Property that do not meet the requirements of a work-for-hire, effective immediately as soon as such work is fixed in a tangible form or medium. Contractor hereby irrevocably appoints Company as Contractor’s attorney-in-fact for the purpose of executing such documents on Contractor’s behalf in order to perform or effect the assignments described in this Section 3, which appointment is coupled with an interest.
4. Confidential Information.
4.1 Definition. “Confidential Information” means the Work Product, Intellectual Property, and any other proprietary information, technical data, trade secrets, or know-how of Company, including, but not limited to, financial information, technical information, recipes, formulas, processes, methodologies, or equipment, business information, operations, planning, marketing, distributors, customers, manufacturers, suppliers, vendors, and product strategies or methods, the terms of any agreement entered into between a third party and Company, its clients, customers, and associated discussions, negotiations, and proposals, and all information subject to this Agreement and any other information acquired or property exchanged during communications with Company or any of its representatives. This Agreement imposes no obligation upon Contractor with respect to information that (a) is known to Contractor at the time of disclosure by Company, as evidenced by written or electronic records, (b) has become publicly known and made generally available through no negligent or intentional act of Contractor, (c) has been rightfully received by Contractor from a third party who is authorized to make such disclosure, or (d) is required, and only to the extent required, to be disclosed by operation of law, court order, or other governmental demand.
4.2 Non-Use and Non-Disclosure. Contractor shall use, possess, and control Confidential Information only for the purpose of performing the Services. Contractor shall use the same degree of care, but no less than a reasonable degree of care, as Contractor uses with respect to his or her own information of a similar nature to protect the Confidential Information. Contractor agrees that he or she shall not, during and for a period of three (3) years following the termination of this Agreement (a) disclose, use, or possess Confidential Information for any purpose whatsoever other than the performance of the Services on behalf of Company, or (b) disclose Company’s Confidential Information to any third party, except as otherwise specifically directed in writing by Company; provided, however, Contractor acknowledges and agrees that Contractor’s duties in this Section 4.2 related to Confidential Information that constitutes trade secrets will not expire.
5. Indemnification. Contractor shall defend, indemnify, and hold Company harmless from and against any claim, loss, costs, suits, allegations, fines, or damages, including, but not limited to, attorneys’ fees, arising out of or resulting from (i) any action by a third party that is based upon any negligent, reckless, or intentionally wrongful act or omission of Contractor, or (ii) any breach by Contractor of any of the terms, conditions, covenants, representations, or warranties contained in this Agreement.
6. Term and Termination
6.1 Term. This Agreement will commence on the Effective Date and will continue in effect until completion of the Services, as defined in Schedule 1 (the “Term”). The Parties may mutually agree in writing to terminate this Agreement, upon delivery and written acceptance by the receiving Party of fourteen (14) days’ prior written notice to the other Party of such intent to terminate this Agreement.
6.2 Effect of Termination; Survival. Upon the termination of this Agreement for any or no reason, all rights and duties of the Parties toward each other will cease, except: (a) Contractor shall discontinue use of and deliver to Company all tangible and electronic embodiments of Confidential Information and Work Product, and (b) Sections 3, 4, 5, 6.2, 7 and 8 shall survive any termination of this Agreement.
7. Dispute Resolution and Arbitration Agreement.
7.1 Pre-Arbitration Dispute Resolution and Notification. Prior to initiating an arbitration, Contractor and Company each agree to notify the other Party of each claim or controversy arising out of or relating to this Agreement or breach, termination, enforcement, or interpretation thereof (each a “Dispute”) and attempt to negotiate an informal resolution to such Dispute first by delivering notice to the other Party at the address listed on the signature page hereto, or any other address as such Party may provide. If after a good faith effort to negotiate one Party feels the Dispute has not and cannot be resolved informally, the Party intending to pursue arbitration agrees to notify the other Party prior to initiating the arbitration. In order to initiate arbitration, a claim must be filed with the AAA and the written Demand for Arbitration (available at www.adr.org) provided to the other Party, as specified in the AAA Rules.
7.2 Agreement to Arbitrate. Contractor and Company mutually agree that any Disputes will be settled by binding arbitration. If there is a dispute about whether this arbitration agreement can be enforced or applies to the Dispute, Contractor and Company agree that the arbitrator will decide that issue.
7.3 Exceptions to Arbitration Agreement. Contractor and Company each agree that the following claims are exceptions to the arbitration agreement and will be brought in a judicial proceeding in a court of competent jurisdiction: (i) Any claim related to actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights; (ii) Any claim seeking emergency injunctive relief based on exigent circumstances (e.g., imminent danger or commission of a crime, hacking, cyber-attack).
7.4 Modification of AAA Rules – Attorney’s Fees and Costs. Contractor and Company each agree that either Party may be entitled to seek an award of attorney fees and expenses if they prevail in arbitration, to the extent provided under applicable law and the AAA rules.
7.5 Arbitrator’s Decision. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court with proper jurisdiction. The arbitrator may award declaratory or injunctive relief only on an individual basis and only to the extent necessary to provide relief warranted by the claimant’s individual claim.
7.6 Jury Trial Waiver. Contractor and Company acknowledge and agree that each Party is hereby waiving the right to a trial by jury as to all arbitrable Disputes.
7.7 No Class Actions or Representative Proceedings. Contractor and Company acknowledge and agree that each Party is waiving the right to participate as a plaintiff or class member in any purported class action lawsuit, class-wide arbitration, private attorney-general action, or any other representative proceeding as to all Disputes. Further, unless Contractor and Company both otherwise agree in writing, the arbitrator may not consolidate more than one Party’s claims and may not otherwise preside over any form of any class or representative proceeding. If this paragraph is held unenforceable with respect to any Dispute, then the entirety of the Arbitration Agreement will be deemed void with respect to such Dispute.
7.8 Severability. In the event that any portion of this Arbitration Agreement is deemed illegal or unenforceable, such provision shall be severed and the remainder of the Arbitration Agreement shall be given full force and effect.
8.1 Governing Law; Attorneys’ Fees. The terms, conditions, and provisions of this Agreement and any Dispute arising hereunder shall be governed by and under the laws of the State of Delaware, without regard to its conflict of law principles; provided, however, that any Dispute brought by Contractor located within the United States will be governed by the laws of the state in which Contractor resides. However, notwithstanding the foregoing sentence, the Arbitration Provision in Section 7 above, and each Dispute thereunder, is governed by the Federal Arbitration Act (9 U.S.C. §§ 1 et seq.). In any legal action or other negotiation or proceeding brought to enforce the terms of this Agreement, the prevailing Party shall be entitled to recover from the non-prevailing Party all costs and fees incurred by such prevailing Party in such action, including, without limitation, attorneys’ fees and all out-of-pocket expenses and all other reasonable costs of enforcement of the terms and conditions hereof. As used herein, the “prevailing Party” means the Party in whose favor a final judgment, order, or decree is rendered or entered.
8.2 Severability. If a court of competent jurisdiction holds any provision of this Agreement, or its application to any person, place, or circumstance, to be invalid, unenforceable, or void, such provision shall be enforced to the greatest extent permitted by law, and the remainder of this Agreement and such provision as applied to other persons, places, and circumstances, will remain in full force and effect.
8.3 Assignment; No Restrictions. The rights, duties, and obligations of Contractor are personal to Contractor and he or she shall not assign, pledge, or transfer any of the rights derived hereunder without the prior written consent of the Company. Company may freely assign its rights and obligations under this Agreement, which inure to the benefit of and are binding upon its successors and assigns. Contractor represents and warrants to Company that he or she is not under any obligation to any other party that is inconsistent with or in conflict with this Agreement or that would prevent, limit, or impair in any way Contractor’s performance of the Services.
8.4 Notices. Any notice given or required to be given under this Agreement shall be in writing and shall be either hand delivered or mailed by certified mail, return receipt requested, postage prepaid, addressed to the other Party at the address set forth on the signature page attached hereto or at such other address as such Party may from time to time designate in writing to the other Party, and will be effective from the date of hand delivery or mailing.
8.5 Entire Agreement; Amendment. This Agreement, along with any Schedules attached hereto, is the entire agreement of the Parties and supersedes any prior agreements between them, whether written or oral, with respect to the subject matter hereof. No waiver, alteration, or modification of any of the provisions of this Agreement will be binding unless in writing and signed by duly authorized representatives of the Parties. To the extent the BullpenRE, Inc. Terms of Service (“TOS”), dated on or about May 1, 2019, or any side letter incorporated therein, agreed to or executed by the Company differs with respect to the provision of services to or payment of compensation of any contractor engaged by the Company through BullpenRE, Inc., the Contractor Services Agreement executed between the Company and the contractor shall control.
8.6 Miscellaneous. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which constitute one (1) and the same instrument. The headings provided for herein are for convenience and reference only and are not a substantive part of this Agreement. Whenever used herein, the singular includes the plural, the plural the singular, and the masculine, feminine, or neuter gender includes all genders. This Agreement is the result of the joint efforts of the Parties, and there shall be no construction against either Party based on any presumption of that Party’s involvement or role in the drafting of this Agreement. Contractor acknowledges and agrees that he or she has had the opportunity to consult with independent legal counsel of his or her own choosing in connection with the terms, conditions, and covenants of this Agreement, and that any decision to not do so was freely and independently determined.
Services & Compensation
[See Terms & Payment in Job Offer]